US Supreme Court Discussions

[Voronwë the Faithful]

She is non-controversial in the sense that she has not been accused of multiple sexual assaults, or anything equivalent to that.

[RoseMorninStar]

Yes, I understand. I was trying to make an oblique reference to her being: Black, Female, and a Democratic pick and it being a reflection of those who have a problem with that.

[N.E. Brigand]

Sens. Murkokski and Romney have joined Sen. Collins in announcing that they will vote to confirm Judge Brown, meaning that she should get 53 votes. Still a ridiculously low number for such a qualified and non-controversial nominee, but at least genuinely bipartisan.

I appreciated Senator Romney's statement:



And I think that, if it hadn't been absolutely necessary for Democrats to oppose the ridiculously hypocritical process that led to her nomination (and I do respect Joe Manchin for standing firm with his party in opposition), they likewise should have voted for Amy Coney Barrett. (That is, if we pretend to forget that every Trump nominee, no matter how qualified, is by default a Putin nominee.)

[Voronwë the Faithful]

The court's conservative majority (minus the Chief Justice) has reinstated a Trump administration rule that limits the right of states to reject federal permits under the Clean Water Act. The five justices did so without comment in a radical abuse of the court's emergency docket (sometimes commonly referred to as the "shadow docket").

https://www.cnn.com/2022/04/06/politics ... index.html

For all of the conservatives' complaints about "judicial activism" by liberals, this another example of the truth of the matter, which is the worst judicial activists are actually the conservatives themselves. They are literally deciding what the executive branch can and cannot do without even bothering with allowing for briefing and oral argument in order to implement the policies that match their political beliefs.

[RoseMorninStar]

[N.E. Brigand]

Senator Mike Lee, like Mitt Romney a Republican of Utah has announced, unsurprisingly, that he will vote no on Ketanji Brown Jackson's nomination.

In his speech, Sen. Lee complained that the confirmation process for Judge Jackson was rushed. It's been 40 days since she was nominated and 69 days since her presumptive predecessor, Justice Stephen Breyer, announced his retirement.

And yet Lee voted for Amy Coney Barrett in October 2020, only 30 days after Judge Barrett was nominated and only 38 days after Barrett's predecessor, Justice Ruth Bader Ginsburg, had died.

Fewer days passed between Ginsburg's death and Barrett's confirmation than have elapsed since Jackson's nomination, but Lee says this process is moving too fast.

[N.E. Brigand]

The court's conservative majority (minus the Chief Justice) has reinstated a Trump administration rule that limits the right of states to reject federal permits under the Clean Water Act. The five justices did so without comment in a radical abuse of the court's emergency docket (sometimes commonly referred to as the "shadow docket").

https://www.cnn.com/2022/04/06/politics ... index.html

For all of the conservatives' complaints about "judicial activism" by liberals, this another example of the truth of the matter, which is the worst judicial activists are actually the conservatives themselves. They are literally deciding what the executive branch can and cannot do without even bothering with allowing for briefing and oral argument in order to implement the policies that match their political beliefs.

In the heat of the moment, I feel like it would be right for Biden to take this approach:



But of course doing so would open the door for the next Republican president to do the same thing.

That said, as long as the Court is in radical conservative hands, no Republican administration would have shadow docket rulings against it.

And the next time there's a liberal majority on the Court (possibly many decades from now), they're unlikely to use the shadow docket, because they object to it on principle.

Democrats continue to be in the bind of being the only ones who play by the rules.

[Voronwë the Faithful]

I'd still rather be on the side that plays by the rules.

[Voronwë the Faithful]

Anti-climatic, but still historic.

Ketanji Brown Jackson becomes first Black woman confirmed to Supreme Court

As expected, the vote was 53-47. Most interestingly, most Republicans then left the chamber and the Democrats (plus Mitt Romney) gave the vote a standing ovation. It is not clear to me whether Collins or Murkowski also stood and applauded.

[Frelga]

@LindseyGrahamSC: "If we get in charge of the Senate in 2022, 2023 we have a majority, I can promise you nominees like Judge Jackson will not make it through. [...] I promise you that if we were in charge and we had a say, there would be somebody less extreme filling this seat.

[N.E. Brigand]

I think Senator Chris Coons, Democrat of Delaware is wrong about his having been wrong:



Gorsuch certainly was a qualified nominee,* but he will forever be an illegitimate justice because his seat was stolen.


*albeit one who holds some backwards views

[N.E. Brigand]

Anti-climatic, but still historic.

Ketanji Brown Jackson becomes first Black woman confirmed to Supreme Court

As expected, the vote was 53-47. Most interestingly, most Republicans then left the chamber and the Democrats (plus Mitt Romney) gave the vote a standing ovation. It is not clear to me whether Collins or Murkowski also stood and applauded.

When Judge Jackson is sworn in this summer, the Supreme Court for the first time in history will not have a majority of white men. (It will still have a majority of men, and it will probably take several more centuries until the Court has had as many female as male justices. Will the U.S. last that long?)

Following her confirmation, Lindsey Graham released a bizarre video justifying his vote against Jackson saying that "the game has changed" and calling on people to "remember Amy Coney Barret: how they came after her" and "remember Kavanaugh: I do." He said that by contrast, Jackson "wasn't ambushed," she just gave "bad answers" to "hard questions" -- never mind that nothing about Jackson has changed since Graham voted for her appointment to the U.S. Court of Appeals.

Graham also repeats a phony Republican talking point: "when we nominated a qualified African American woman, they filibuster her without apology." As the graphics in Graham's videos show, he's referring to Judge Janice Rogers Brown, who has never been nominated to the Supreme Court. She's been an Appeals Court judge since 2005, and there have been five Supreme Court vacancies during Republican administrations since then. Neither George W. Bush nor Donald Trump picked her for SCOTUS, not even since the filibuster on Supreme Court judges was removed in 2017.

- - - - - - - - - -
Anyway, kudos to Senators Collins, Murkowski, and Romney. Whether they were motivated by principle or by the politics of appealing to a moderate electorate, their vote gives a bipartisan stamp to the elevation to the Court of a judge who was busy locking up pedophiles at the same time that Republicans were attempting to get an alleged pedophile elected to the Senate.

[RoseMorninStar]

There was an opinion piece in the NYT today I thought some of you might find interesting.
Roberts Has Lost Control of the Supreme Court

By Stephen I. Vladeck

Professor Vladeck teaches courses on the federal courts and constitutional law at the University of Texas School of Law. He also co-hosts a podcast on national security law.

Last week the Supreme Court, by a 5-to-4 vote, put back into effect a Trump administration regulation that limited the ability of states to block projects that could pollute rivers and streams. The unsigned, unexplained order in Louisiana v. American Rivers came as part of a highly technical dispute over the scope of the Clean Water Act — and leaves for another day whether the regulation is a valid interpretation of that Nixon-era statute.

But the temporary decision cannot be ignored, especially because of the brief but blistering dissenting opinion written by Justice Elena Kagan. It’s not the first time that liberal justices have called out most of the court’s conservative justices for their increasingly frequent use of the so-called shadow docket — unsigned, unexplained orders like the one last week. But it was significant for being the first time that Chief Justice John Roberts joined her (and Justices Stephen Breyer and Sonia Sotomayor) in doing so.

With the striking public stance, the chief justice illustrated how concerns about the procedural shortcuts the other conservative justices are taking do (and should) cross ideological divides. He also made clear what many have long suspected: The Roberts court is over.

The term “shadow docket” was introduced by the University of Chicago law professor Will Baude in 2015 to describe the more obscure part of the Supreme Court’s work — the thousands of unsigned and usually unexplained orders that the justices issue each year to manage their docket. Those orders are in contrast to the merits docket, the 60 to 70 cases each year that go through rounds of briefing and oral argument before being resolved in long, signed opinions for the court.

Owing to its inscrutability, the shadow docket has historically received much less public attention or scrutiny. Most shadow docket orders are anodyne — matters as routine as refusing to take up an appeal or giving a party more time to file a brief.

But far more than ever before, the court is using procedural orders on applications for emergency relief while appeals work their way through the courts to resolve disputes affecting the lives of millions of Americans — whether in blocking a rule from the Occupational Safety and Health Administration on a vaccination mandate for large employers, refusing to block Texas’ ban on most abortions after six weeks or putting back into effect congressional district maps that two Alabama lower courts struck down as violating the Voting Rights Act.

Time and again, the justices are ordering lower courts to treat these decisions as precedents — even when, as in last week’s ruling, the order includes no analysis to apply to other cases, which often makes the precedent difficult for lower courts to apply.

Unsurprisingly, these rulings have provoked increasingly strident dissents from the court’s liberal justices. Last September, when the justices refused, by a 5-to-4 vote, to halt the patently unconstitutional Texas abortion law, Justice Kagan criticized the majority not just for the substance of its ruling but also for what that ruling said about the shadow docket. She wrote, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”

Last week, by freezing a district court injunction despite a lack of evidence that it was harming the complaining states, the majority once again defied the requirements for the very emergency relief they granted. Justice Kagan wrote that that renders the court’s “emergency docket not for emergencies at all” but rather “only another place for merits determinations — except made without full briefing and argument.” In other words, the principal justification for shadow docket orders — the need to intervene early in litigation to prevent a party from suffering irreversible harm while the appeal unfolded — was nowhere to be found.

Chief Justice Roberts voted with Justices Breyer, Sotomayor and Kagan in dissenting from six previous shadow docket rulings. But the Clean Water Act dispute was the first time he joined in the procedural criticism that the other conservatives were not just using the shadow docket but abusing it. In that respect, his rebuke cannot be dismissed as partisan. By publicly endorsing the charge that the conservative justices are short-circuiting ordinary procedures to reach their desired results without sufficient explanation, Chief Justice Roberts provided a powerful counter to defenders of the court’s behavior. Justice Samuel Alito, for instance, claimed in a September 2021 speech that critics of these rulings are acting in bad faith because their real objections are to the results in these cases.

What is especially telling about Chief Justice Roberts’s dissents in these shadow docket cases is that, unlike Justices Breyer, Sotomayor and Kagan, he’s often been sympathetic to the results. In February’s Alabama redistricting ruling, for instance, Chief Justice Roberts agreed that the court should reconsider the interpretation of the Voting Rights Act under which Alabama’s maps had been struck down; he just believed that any change in that interpretation had to come through the merits docket, not the shadow docket.

At least on the shadow docket, though that’s no longer up to him. Instead, the court’s destiny increasingly appears to be controlled by Justices Brett Kavanaugh and Amy Coney Barrett. She implored an audience at the Ronald Reagan Presidential Library just last week to “read the opinion” before jumping to any conclusions about whether the justices are acting more like politicians than judges. Two days later, she joined the majority’s unsigned, unexplained order in the Clean Water Act case, in which there was no opinion to read. Justice Kavanaugh, too, seems more troubled by criticism of the court’s behavior than by the behavior itself, going out of his way in February’s Alabama redistricting cases to criticize the “catchy but worn-out rhetoric about the ‘shadow docket’” in Justice Kagan’s dissent.

It’s not the rhetoric that is wearing out, though; it’s the court’s credibility. The justices have long insisted — as Justices Sandra Day O’Connor, Anthony Kennedy and David Souter put it in 1992 — that “the court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the nation.” The proliferation of principle-free decisions affecting more and more Americans — and with a clear, troubling tendency of favoring Republicans over Democrats — calls that legitimacy into increasingly serious question.

It’s understandable, then, why Chief Justice Roberts would finally speak out. No one better understands the stakes for the court’s credibility — and institutional viability. If even his objections can’t persuade the other conservatives to stop abusing the shadow docket, then that may signal the willingness of the court’s conservative majority to go even further in the future and to use the shadow docket to resolve even more significant and contentious constitutional questions.

Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, specializes in the federal courts and constitutional law. He is also a co-host of “The National Security Law Podcast.” He is writing a book on the shadow docket.

[RoseMorninStar]

There's some reporting which says the Supreme court is preparing to overturn Roe.

[River]

How does a draft opinion leak out of any court??

[N.E. Brigand]

Will Senator Susan Collins support the removal of Justice Kavanaugh? She said she voted for him because he assured her he'd never do this.

[N.E. Brigand]

I'm seeing some legal scholars argue that Alito's draft opinion implies that both gay marriage and gay sex should be illegal, although apparently he's cagey about that.

[N.E. Brigand]

The deep take appears to be that the draft was leaked by someone on the right (Justices Alito or Thomas or their staff) as a way to prevent Justices Barrett or Kavanaugh from backing out and signing on to a compromise being pushed by Chief Justice Roberts.

[N.E. Brigand]

Whoever leaked it, I'm glad and would welcome more Supreme Court leaks. (Some interesting history on past leaks here and here.)

Also the outrage from Republicans about the leak is hilarious (per Matt Walsh, the "leak is an an actual insurrection"; Matt Schlapp says that when Republicans again control Congress, there should be "impeachment implications ... for potential violation of a Justice's oath," and Ben Shapiro feels the leak is intended "to create threat to the life and limb of any justice who signs onto the majority opinion" and deserves "prosecution to the full extent of the law") and, as The Daily Show notes, ironic:

[N.E. Brigand]

Will Senator Susan Collins support the removal of Justice Kavanaugh? She said she voted for him because he assured her he'd never do this.

Collins has issued a statement which says: "If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office."